Fowler v. Sacramento County ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFF FOWLER, 
Petitioner-Appellant, No. 04-15885
v. D.C. No.
SACRAMENTO COUNTY SHERIFF’S  CV-00-02195-
DEPARTMENT; CALIFORNIA ATTORNEY MCE/PAN
GENERAL, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
June 14, 2005—San Francisco, California
Filed August 31, 2005
Before: Richard C. Tallman, Jay S. Bybee, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
11925
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11929
COUNSEL
Quin Denvir and Allison Claire, Office of the Federal
Defender, Sacramento, California, for petitioner-appellant Jeff
Fowler.
Bill Lockyer, Robert R. Anderson, Mary Jo Graves, John G.
Mclean and George M. Hendrickson, Office of the Attorney
General of the State of California, Sacramento, California, for
respondent-appellee the State of California.
OPINION
BEA, Circuit Judge:
Defendant-Appellant Jeff Fowler was convicted of annoy-
ing or molesting Charla Lara in violation of California Penal
Code § 647.6 following a jury trial in which he was precluded
from cross-examining Lara regarding two prior incidents in
which she alleged that other men had molested her. We con-
clude that the proffered cross-examination sufficiently bore
upon Lara’s reliability or credibility such that the jury might
reasonably have questioned it and, thus, that the cross-
examination implicated Fowler’s Sixth Amendment right to
confrontation. We further conclude that the trial court’s
implicit determination — that precluding the proffered cross-
examination, rather than limiting it, was not unreasonable,
11930 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
arbitrary or disproportionate given the trial court’s concerns
about waste of time, confusion of the issues, and prejudice —
was itself objectively unreasonable. Finally, because Lara’s
testimony was crucial to the State’s case, which, in any event,
was not strong, we conclude that this error had substantial and
injurious effect or influence in determining the jury’s verdict.
We therefore reverse the district court’s order denying Fow-
ler’s petition for a writ of habeas corpus, and remand for issu-
ance of a conditional writ.
I.
A.
On September 5, 1998, Fowler agreed to drive Lara from
her mother’s apartment to her friend’s house. Lara, who was
then fourteen years old, was daughter to Kelly Kenniston,
with whom Fowler had been romantically involved. All par-
ties agree that, before driving Lara to her friend’s house, Fow-
ler applied some type of lotion to her, and that, while driving
Lara to her friend’s house, Fowler engaged her in a sexually
explicit conversation. However, the details in Lara’s and Fow-
ler’s accounts differ considerably. There were no third-party
witnesses to either event.
1.
At trial, Lara testified that before Fowler drove her to her
friend’s house, he suggested that she change clothes and then
entered the walk-in closet while she was wearing only a bra
and underpants to offer her a particular dress. Lara put on the
dress and then excused herself to the bathroom, where Fowler
followed and told her that she needed some lotion and that he
would apply it. He first applied it to her lower legs and thighs
and, while doing so, his hand brushed the outside of her
underpants several times. He then applied the lotion to her
arms, after which he told Lara to lift her dress so that he could
apply it to her back. Lara complied, and, as Fowler was apply-
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11931
ing the lotion to her back, he pushed her underpants down
with his hand. He also applied the lotion to Lara’s stomach,
and, while doing so, slipped his hand underneath her under-
pants, but did not touch her vagina. Finally, he applied the
lotion to her breasts, moving his hands inside her bra and
touching her nipples. Fowler and Lara then left the apartment.
While driving Lara to her friend’s house, Fowler asked her
whether she watched pornographic movies. He also suggested
that, if she “got ‘horny,’ ” she should masturbate rather than
have sex, but that, should she have sex, she should use a con-
dom.
2.
As noted above, Fowler concedes that he applied the lotion
and that he later engaged Lara in a sexually explicit conversa-
tion. Otherwise, he tells a very different story. Fowler testified
that Lara was already wearing the dress when he entered the
apartment. He testified further that Lara asked him to apply
the lotion, and that he did so quickly and asexually. Specifi-
cally, while he acknowledged applying the lotion to Lara’s
lower legs, arms and possibly her shoulders and back, he
denied having touched her thighs, groin, stomach, breasts or
nipples. As for the later conversation, Fowler explains that he
initiated the conversation because Lara’s father previously
had told Fowler that Lara was “messing around” with her
step-brothers, and Fowler was attempting to counsel Lara
about the differences between appropriate and inappropriate
sexual behavior.
3.
After Lara arrived at her friend’s house, her friend’s mother
noticed that Lara did not appear to be feeling well. When she
inquired, Lara eventually said something about Fowler having
put lotion on her, prompting her friend’s mother to telephone
Kenniston, who, in turn, contacted the police. About two
weeks later, Lara was questioned about the incidents by an
11932 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
interview specialist with the Multi-Disciplinary Interview
Center (“MDIC”), while a detective with the Sacramento
County Sheriff’s Department observed from behind a two-
way mirror.
B.
1.
Shortly afterwards, Fowler was charged with sexual battery
in violation of California Penal Code § 243.41 and annoying
or molesting a minor in violation of California Penal Code
§ 647.6.2 He pleaded not guilty.
Before trial, the State moved to prevent Fowler from cross-
examining Lara and offering evidence regarding two incidents
of molestation that, in her MDIC interview, Lara had claimed
to have suffered about six years before the incident involving
1
A sexual battery takes place when, for the purpose of sexual arousal,
sexual gratification, or sexual abuse, the defendant (1) touches an intimate
part of the alleged victim while the alleged victim is (a) unlawfully
restrained and the touching is against the will of the alleged victim,
(b) institutionalized for medical treatment and seriously disabled or medi-
cally incapacitated and the touching is against the will of the alleged vic-
tim, or (c) unconscious of the nature of the act because the defendant
fraudulently represented that the touching served a professional purpose,
or (2) causes the alleged victim to masturbate or touch an intimate part of
the defendant or another while the alleged victim is (a) unlawfully
restrained and the touching is against the will of the alleged victim, or
(b) institutionalized for medical treatment and seriously disabled or medi-
cally incapacitated and the touching is against the will of the alleged vic-
tim. Cal. Penal Code § 243.4.
2
Conduct qualifies as annoying or molesting for purposes of California
Penal Code § 647.6 if the conduct “would unhesitatingly disturb or irritate
a normal person if directed at that person” and was “motivated by an
unnatural or abnormal sexual interest in . . . the alleged child victim[ ].”
CALJIC 16.440; accord People v. Lopez, 965 P.2d 713, 717 (1998). The
conduct need not “actually disturb or irritate the child” nor must “the body
of the child be actually touched.” CALJIC 16.440; accord Lopez, 965 P.2d
at 717.
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11933
Fowler. Fowler opposed the State’s motion, arguing that it
would violate his Sixth Amendment rights to confront and
cross-examine adverse witnesses and his Fourteenth Amend-
ment right to due process. In opposing the motion, Fowler
made a proffer to the trial court detailing the proposed cross-
examination. The proffer was based on the MDIC interview
and on a police report in connection with the second of the
two earlier alleged incidents of molestation.
According to Fowler’s proffer, the first of these two prior
incidents involved an “acquaintance” of Kenniston named
Tommy Filson. Lara claimed to have been sleeping at Filson’s
residence when Filson “grabbed her in the crotch, pulled
down her pants, touched her butt,” and then repeated the pro-
cess at least twice. According to Lara, Filson “went to either
jail or prison as a result of that.”3
The second incident occurred “a little bit after that” and
involved Kenniston’s then-boyfriend Steven Hendrix.
According to Fowler’s reading of Lara’s MDIC interview:
My mom had a boyfriend and, umm, like this is like
— like a little bit after that Tommy [Filson] incident.
So I was thinking I was just like a little cautious
about things. And he was putting me to bed, and I
don’t really know if he meant to do that, so he —
like he was like flying me into bed and he, like he
was holding my crotch, and I was just — I said
something to my mom, and my mom went and told
the cops. But I don’t think . . . it was that big of a
deal.
(Emphases added). The Bakersfield Police Department inves-
3
In fact, although Filson was charged with committing lewd and lascivi-
ous acts on both Lara and a friend with whom Lara was sharing a bed, Fil-
son was convicted of committing lewd and lascivious acts only as to the
friend, not Lara.
11934 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
tigated this second incident, and although, in retrospect, Lara
admitted to having been “a little cautious about things” and
described the incident as not “that big of a deal,” she reported
to the Bakersfield Police Department at the time of the inci-
dent “that [Hendrix] put his hand between her legs on her pri-
vate part and squeezed about four times.” Nonetheless, the
Bakersfield Police Department concluded that the case was
“unfounded,” apparently because Lara’s statements were
uncorroborated and because Kenniston contradicted Lara.
Specifically, although intoxicated at the time of the alleged
incident, Kenniston claimed to have observed Hendrix putting
Lara to bed on the night in question and to have seen no inap-
propriate touching: “[Kenniston] said she only observed
[Hendrix] . . . lay [Lara] on the bed, in a sense. She said
before that she did not observe anything unusual . . . . She
never noticed him to touch [Lara] in any way, and she
believed [Lara] was asleep during the entire time.”
Fowler argued that the incident involving Hendrix was evi-
dence that, owing to the earlier incident involving Filson,
Lara had a tendency to, as she put it, be “a little cautious
about things” and, perhaps, as Fowler put it, to be “supersen-
sitive” to physical contact “somewhere near a sensitive area
such as a breast or vaginal area or crotch” by adult men and,
thus, to “[mis]perceive[ ],” “exaggerate[ ]” or “overreact[ ].”
Fowler argued that this was particularly relevant given that he
“acknowledge[d] that he rubbed cream on [Lara’s] legs and
arms,” but denied “touch[ing] her in a sexual manner or in a
sexual place.” Fowler also argued that the incident involving
Hendrix was evidence not merely of Lara being prone to over-
reaction, but also of her untruthfulness.
The trial court granted the State’s motion to preclude the
proffered cross-examination. It first explained that there was
no “indication” that Lara actually overreacted or lied in the
prior incidents and that the facts of the prior accusations were
“very dissimilar” from those here. It then “weigh[ed] the evi-
dence” pursuant to California Evidence Code § 352 against
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11935
the facts that its introduction “would consume an inordinate
amount of court time,” “would be extremely confusing to this
jury,” and “would be significantly more prejudicial than it
would be probative.”4
2.
At the conclusion of the ensuing two-day trial, the jury
deliberated for four days. Ultimately, it was unable to reach
a unanimous verdict as to the sexual battery charge, but con-
victed Fowler of annoying and molesting Lara. Fowler was
placed on three-years probation, conditioned on his serving
150 days in county jail and registering as a sex offender pur-
suant to California Penal Code § 290.
3.
After exhausting his state remedies, Fowler filed in federal
district court the petition for a writ of habeas corpus now
before us. He made six claims, including that in limiting his
cross-examination of Lara, the trial court violated his Sixth
Amendment right to cross-examine adverse witnesses. The
magistrate judge recommended issuing the writ on the basis
of this claim, but otherwise found Fowler’s claims to be with-
out merit. Rejecting the magistrate judge’s recommendation,
the district court concluded that all of Fowler’s claims were
without merit and denied the petition. Fowler then filed this
timely appeal, and the district court granted a certificate of
appealability as to all of the issues raised in the petition. We
have jurisdiction pursuant to 28 U.S.C. § 2253.5
4
California Evidence Code § 352 is the rough equivalent of Federal
Rule of Evidence 403, stating: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probabil-
ity that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” Cal. Evid. Code § 352.
5
Typically, federal courts have jurisdiction to consider a habeas petition
only if the petitioner is “ ‘in custody’ under the conviction or sentence
11936 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
II.
A.
We review a district court’s decision to deny a petition for
a writ of habeas corpus de novo and its findings of fact for
clear error. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th
Cir. 2004).
B.
Because Fowler filed this petition for a writ of habeas cor-
pus on October 6, 2000 and, thus, after the effective date of
the Antiterrorism and Effective Death Penalty Act
under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S.
488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238
(1968)); Resendiz v. Kovensky, 416 F.3d 952, ___, 2005 WL 1501495, at
*6 (9th Cir. 2005) (noting exceptions to the “in custody” requirement); see
also 28 U.S.C. §§ 2241(c)(3), 2254(a). “A probationary term is sufficient
custody to confer [this] jurisdiction.” See United States v. Spawr Optical
Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). Fowler was on pro-
bation at the time he filed his habeas petition. Therefore, this is unlike
Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999), wherein we held that
being subject to California’s sex offender registration requirement is
merely a collateral consequence of conviction and does not itself satisfy
the requirement for habeas relief that the petitioner be “in custody.” Id. at
1241-42 (citing Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir.
1998)).
Further, although Fowler is no longer on probation, “[s]o long as the
adverse consequences of a criminal conviction remain, a petition for a writ
of habeas corpus is not moot, even though the petitioner’s custody has
expired since filing.” Spawr Optical Research, Inc., 864 F.2d at 1470 (cit-
ing Carafas, 391 U.S. at 236-38); accord Spencer v. Kemna, 523 U.S. 1,
7 (1998); Maleng, 490 U.S. at 491-92. Fowler continues to be subject to
California’s sex offender registration requirement. Cal. Penal Code
§§ 290(a)(1)(A), 290(a)(2)(A) (requiring those who have been convicted
of specified offenses to register as sex offenders so long as they reside,
attend school, or work in California, and listing annoying or molesting a
minor in violation of California Penal Code § 647.6 as among the offenses
requiring registration).
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11937
(“AEDPA”), its provisions apply. Lindh v. Murphy, 521 U.S.
320, 322-23, 336 (1997). AEDPA states in relevant part:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim . . . resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States . . . .
28 U.S.C. § 2254(d)(1). Before applying this now familiar
provision, three points bear repetition.
First, “clearly established Federal law[ ] as determined by
the Supreme Court of the United States,” id., refers to “the
governing legal principle or principles” set forth by the
Supreme Court as of the time of the relevant state-court deci-
sion, Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004)
(citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)),
which is the “last reasoned decision” by the state court. Rob-
inson, 360 F.3d at 1055. Nevertheless, “[o]ur cases may be
persuasive authority for purposes of determining whether a
particular state court decision is an ‘unreasonable application’
of Supreme Court law, and may also help us determine what
law is ‘clearly established.’ ” Duhaime v. Ducharme, 200
F.3d 597, 600 (9th Cir. 2000).
Second, a decision is “contrary to” clearly established fed-
eral law as determined by the Supreme Court if “the state
court applies a rule that contradicts the governing law set
forth in [the Supreme Court’s] cases” or “if the state court
confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). By contrast, the mere
11938 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
failure to identify expressly the correct legal standard does not
render the state court’s decision “contrary to” clearly estab-
lished federal law as determined by the Supreme Court so
long as the state court’s reasoning and result are not “contrary
to” that precedent. Early v. Packer, 537 U.S. 3, 8 (2002).
Third, a decision involves “an unreasonable application of”
clearly established federal law as determined by the Supreme
Court only if its application of that law is “objectively unrea-
sonable,” Williams, 529 U.S. at 409, which means something
more than merely incorrect. Id. at 410-11. “[T]he range of
reasonable judgment can depend in part on the nature of the
relevant rule. . . . The more general the rule, the more leeway
courts have in reaching outcomes in case by case determina-
tions.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
III.
A.
[1] The Confrontation Clause of the Sixth Amendment pro-
vides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him . . . .” U.S. Const. amend. VI. This right, which is incor-
porated by the Fourteenth Amendment so as to apply to state
prosecutions, Pointer v. Texas, 380 U.S. 400, 403 (1965),
“guarantees the defendant [not only] a face-to-face meeting
with witnesses appearing before the trier of fact,” Coy v.
Iowa, 487 U.S. 1012, 1016 (1988), but also the right to cross-
examine those witnesses. Pointer, 380 U.S. at 404, 406-07;
Douglas v. Alabama, 380 U.S. 415, 418 (1965) (“[A] primary
interest secured by [the Confrontation Clause] is the right of
cross-examination . . . .”). Thus, as is relevant here, “a crimi-
nal defendant states a violation of the Confrontation Clause
by showing that he was prohibited from engaging in other-
wise appropriate cross-examination designed . . . ‘to expose
to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.’ ”
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11939
See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)
(quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)); see also
Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam)
(quoting Van Arsdall, 475 U.S. at 680).
1.
Before turning to what is meant by “appropriate” cross-
examination, Van Arsdall, 475 U.S. at 680, two points warrant
emphasis.
[2] First, “the right to cross-examine includes the opportu-
nity to show [not only] that a witness is biased, [but also] that
the testimony is exaggerated or [otherwise] unbelievable.”
Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987) (plural-
ity); see also Delaware v. Fensterer, 474 U.S. 15, 22 (1985)
(per curiam) (“[T]he Confrontation Clause is generally satis-
fied when the defense is given a full and fair opportunity to
probe and expose [testimonial] infirmities [such as forgetful-
ness, confusion, or evasion] through cross-examination,
thereby calling to the attention of the factfinder the reasons
for giving scant weight to the witness’ testimony.”); Davis,
415 U.S. at 316 (“[T]he cross-examiner is . . . permitted to
delve into the witness’ story to test the witness’ perceptions
and memory, [and] . . . has traditionally been allowed to
impeach, i.e., discredit, the witness.”). Thus, cross-
examination may implicate the Sixth Amendment without
implying conscious or malicious fabrication on the part of the
witness so long as it otherwise bears on the witness’s reliabil-
ity or credibility. See Van Arsdall, 475 U.S. at 680. For exam-
ple, in Davis, the defendant sought to cross-examine a
prosecution witness regarding the fact that, at the time he
identified the defendant to the police, he was on probation
after having been adjudicated a juvenile delinquent. Davis,
415 U.S. at 309-11. In so doing, the defense sought to show
not that the prosecution witness consciously or maliciously
lied, but that he might have made a “hasty and faulty identifi-
cation” of the defendant to shift suspicion away from himself,
11940 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
or that he might have been subject to “undue pressure” from
the police resulting from fear of possible probation revoca-
tion. Id. at 311, 317-18. The Supreme Court held that the pre-
cluded cross-examination came within the ambit of the Sixth
Amendment. Id. at 317-18.
[3] Second, cross-examination may implicate the Sixth
Amendment even if it is not certain to affect the jury’s assess-
ment of the witness’s reliability or credibility. See Davis, 415
U.S. at 317 (refusing to “speculate as to whether the jury, as
sole judge of the credibility of a witness, would have accepted
th[e] [defendant’s] line of reasoning had counsel been permit-
ted to fully present it,” but nevertheless concluding that the
trial court violated the defendant’s Sixth Amendment right to
cross-examination by precluding the proffered cross-
examination). Rather, it is sufficient that a jury “might reason-
ably” have questioned the witness’s reliability or credibility in
light of the cross-examination. Van Arsdall, 475 U.S. at 679;
see also Olden, 488 U.S. at 232 (1988) (quoting Van Arsdall,
475 U.S. at 680); Van Arsdall, 475 U.S. at 680 (holding that
the defendant “state[d] a violation of the Confrontation
Clause” where “[a] reasonable jury might have received a sig-
nificantly different impression of [the prosecution witness’s]
credibility had [the defendant’s] counsel been permitted to
pursue his proposed line of cross-examination”); Davis, 415
U.S. at 319 (concluding that the trial court violated the defen-
dant’s Sixth Amendment right to cross-examination where
“[s]erious damage to the strength of the State’s case would
have been a real possibility had [the defendant] been allowed
to pursue [the proffered] line of inquiry”).
2.
Of course, even where cross-examination bears on the reli-
ability or credibility of a witness and sufficiently so such that
a jury might reasonably question such reliability or credibil-
ity, the cross-examination must nevertheless be “appropriate”:
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11941
It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial
judge from imposing any limits on defense counsel’s
inquiry into the [reliability or credibility] of a prose-
cution witness. On the contrary, trial judges retain
wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-
examination based on concerns about, among other
things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.
See Van Arsdall, 475 U.S. at 679; see also Olden, 488 U.S.
at 232 (same); Davis, 415 U.S. at 316 (noting that cross-
examination is “[s]ubject always to the broad discretion of a
trial judge to preclude repetitive and unduly harassing interro-
gation”); Alford v. United States, 282 U.S. 687, 694 (1931)
(holding that a trial court “may exercise a reasonable judg-
ment in determining when [a] subject [on cross-examination]
is exhausted” and has “a duty to protect [the witness] from
questions which go beyond the bounds of proper cross-
examination merely to harass, annoy or humiliate”); Wood v.
Alaska, 957 F.2d 1544, 1549-54 (9th Cir. 1992) (explaining
that even relevant cross-examination may properly be
excluded if its probative value is outweighed by other legiti-
mate interests).6
6
The Supreme Court has likewise held that other, closely related rights
are similarly limited. E.g., Michigan v. Lucas, 500 U.S. 145, 149 (1991)
(“ ‘[T]he right to present relevant testimony is not without limitation. The
right “may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.” ’ ”) (quoting Rock v. Arkansas, 483
U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295
(1973))); Maryland v. Craig, 497 U.S. 836, 844-50 (1990) (holding that
although the Sixth Amendment right to “face-to-face confrontation” is not
“absolute” and, like “other Sixth Amendment rights[,] must also be inter-
preted in the context of the necessities of trial and the adversary process,”
it nonetheless may “be dispensed with . . . only where denial of such con-
frontation is necessary to further an important public policy and only
where the reliability of the testimony is otherwise assured”).
11942 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
[4] Rather significantly, however, these restrictions must be
“reasonable,” Van Arsdall, 475 U.S. at 679, and “ ‘may not be
arbitrary or disproportionate to the purposes they are designed
to serve.’ ” Lucas, 500 U.S. at 151 (quoting Rock, 483 U.S.
at 56). For example, in Van Arsdall, although the Supreme
Court noted that trial courts may impose “reasonable limits”
on cross-examination, it nevertheless held that the trial court
there violated the defendant’s Sixth Amendment right to
cross-examination when, pursuant to the equivalent of Cali-
fornia Code of Evidence § 352, it prohibited “all inquiry”
about an event that the State conceded had taken place and
that a jury “might reasonably” have found bore on the wit-
ness’s reliability or credibility. Van Arsdall, 475 U.S. at 676,
679 (emphasis in original). Likewise, in Olden, the Supreme
Court acknowledged that a trial court may impose “reasonable
limits” on cross-examination, but, in the very same breath,
concluded that the limitation there, again, pursuant to the
equivalent of California Code of Evidence § 352, was “be-
yond reason” because mere “[s]peculation” as to the prejudi-
cial effect of precluded cross-examination could not justify its
exclusion where it had “such strong potential to demonstrate
the falsity of [the prosecution witness’s] testimony.” Olden,
488 U.S. at 230, 232. We too have held that precluding cross-
examination in certain circumstances was unreasonable, arbi-
trary or disproportionate. E.g., United States v. Schoneberg,
396 F.3d 1036, 1042 (9th Cir. 2005) (holding that the trial
court was “erroneous” in characterizing the precluded cross-
examination as irrelevant and misleading and, thus, conclud-
ing that “we cannot sustain the limitation on cross examina-
tion as an exercise of permissible discretion”); cf. LaJoie v.
Thompson, 217 F.3d 663, 671-73 (9th Cir. 2000) (concluding
that the exclusion of evidence pursuant to a state rape shield
law was arbitrary and disproportionate to the purposes served
by the rape shield law and, thus, that the exclusion of the evi-
dence was an unreasonable application of clearly established
law as determined by the Supreme Court).
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11943
Barb.
1.
The last-reasoned state-court decision here — and, thus, the
decision that we review — is the trial court’s. See Robinson
v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). As noted
above, in granting the State’s motion in limine, the trial court
first explained that there was no “indication” that Lara actu-
ally overreacted or lied in the prior incidents and that the facts
of the prior accusations were “very dissimilar” from those
here. It then “weigh[ed] the evidence” pursuant to California
Evidence Code § 352 against the facts that its introduction
“would consume an inordinate amount of court time,” “would
be extremely confusing to this jury,” and “would be signifi-
cantly more prejudicial than it would be probative.” Conclud-
ing that the probative value of the proffered cross-
examination was substantially outweighed by these concerns,
the trial court precluded it.
2.
a.
[5] Although the trial court did not expressly rely upon “the
governing legal principle,” see Lambert v. Blodgett, 393 F.3d
943, 974 (9th Cir. 2004), its reasoning was nonetheless con-
sistent with that principle. It took into consideration various
legitimate state interests such as waste of time, confusion and
prejudice, and, in weighing those interests against the proba-
tive value of the proffered cross-examination, it implicitly
determined that the exclusion of that evidence was not unrea-
sonable, arbitrary or disproportionate. See Lucas, 500 U.S. at
151; Van Arsdall, 475 U.S. at 679. Nor are there any Supreme
Court cases that are materially indistinguishable from the situ-
ation here in which the Supreme Court held contrary to the
trial court. Thus, the trial court’s ruling was not “contrary to”
clearly established federal law as determined by the Supreme
11944 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
Court. See Early v. Packer, 537 U.S. 3, 8 (2002); Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).
b.
Having so concluded, we must nevertheless consider
whether the trial court’s preclusion of the cross-examination
was an objectively unreasonable application of that precedent.
In so doing, we consider first whether the proffered cross-
examination sufficiently bore upon Lara’s reliability or credi-
bility such that a jury might reasonably have questioned it,
and, if so, whether the trial court’s preclusion of this cross-
examination was unreasonable, arbitrary or disproportionate
given its concerns about waste of time, confusion and preju-
dice.
[6] According to Fowler’s proffer, Lara reported to the
Bakersfield Police Department “that [Hendrix] put his hand
between her legs on her private part and squeezed about four
times.” The Bakersfield Police Department concluded, how-
ever, that the case was “unfounded.” Further, despite having
reported what appears to be a deliberate molestation, Lara
herself later conceded in her MDIC interview that she had
been “a little cautious about things” and that, in retrospect,
she did not view the Hendrix incident as “that big of a deal,”
suggesting that she may have overreacted and perhaps exag-
gerated in reporting the Hendrix incident. Based on this evi-
dence, a jury very well might reasonably have concluded that
Lara was hypersensitive to physical contact by adult men and,
thus, tended to misinterpret or misperceive the conduct, over-
react and then, perhaps unconsciously, exaggerate or embel-
lish in recounting the conduct so as to fit her subjective
misinterpretation or misperception.7 Additionally, given Ken-
7
Similarly, albeit in a pre-AEDPA case, we have before recognized that
exclusion of evidence tending to show that an alleged victim of sexual
abuse is prone to fantasy implicates the Sixth Amendment. In Franklin v.
Henry, 122 F.3d 1270 (9th Cir. 1997), overruled on other grounds by Pay-
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11945
niston’s statements to the detective investigating the Hendrix
incident that “she only observed [Hendrix] . . . lay [Lara] on
the bed,” “that she did not observe anything unusual,” that
“[s]he never noticed him to touch [Lara] in any way,” and that
“she believed [Lara] was asleep during the entire time,” a jury
might reasonably have found that Lara had consciously lied
about the Hendrix incident.
[7] Nor, finally, was the Hendrix incident so dissimilar
from the allegations against Fowler that Lara’s arguable lack
of reliability or credibility in reporting that incident was irrel-
evant as to her allegations here. In recommending that Fow-
ler’s habeas petition be granted on this issue, the magistrate
judge persuasively set forth the similarity of the incidents:
The trial court also erred in characterizing the [Hen-
drix] incident as “dissimilar” to allegations against
[Fowler]. Both incidents involved alleged molesta-
tion by Kenniston’s boyfriend; Lara accused both
men of repeatedly grabbing or bumping her groin
ton v. Woodford, 299 F.3d 815, 829 n.11 (9th Cir. 2002) (en banc), the
defendant was tried for sexually abusing a child in violation of California
Penal Code §§ 288.5(a) and 1203.066(a)(8) on the basis of the child’s
statement that the defendant had “licked her ‘private’ and made her lick
his ‘private.’ ” Id. at 1270-71. At trial, the defendant attempted to intro-
duce as evidence that he had witnessed the same child tell her two brothers
that her mother “had come into her room and ‘licked her private.’ ” Id. at
1272. The trial court refused to admit this evidence. Id. The defendant was
convicted and, after exhausting his state remedies, filed a habeas petition
in district court, which the district court denied. Id. at 1272-73. On appeal,
we reversed, holding: “The explicit testimony bore on the credibility of the
only percipient witness against [the defendant]. If believed by the jury,
[the defendant’s] testimony would have shown [the alleged victim] capa-
ble of fantasies about her mother analogous to the charges she made
against [the defendant].” Id. at 1273. We note further that fantasy by child
witnesses is well-documented. Craig, 497 U.S. at 868 (Scalia, J., dissent-
ing) (listing “studies show[ing] that children are substantially more vulner-
able to suggestion than adults, and often unable to separate recollected
fantasy (or suggestion) from reality”).
11946 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
through her clothing; both men admitted physical
contact occurred but not to the groin; both men gave
an innocent explanation for what took place. The
incident [here] was strikingly similar, regardless of
its remoteness in time. The evidence had substantial
relevance.
The incidents were not, of course, identical, but, as Fowler
astutely observed before the trial court, “life isn’t like that.”
[8] Thus, although the trial court concluded that there was
no “indication” that Lara actually overreacted or lied in the
prior incidents and that the facts of the prior incidents were
“very dissimilar” from those here, in fact, there can be no
doubt that the precluded cross-examination sufficiently bore
on Lara’s reliability or credibility such that a jury might rea-
sonably have questioned it.8 We reiterate that “[w]e cannot
[and do not] speculate as to whether the jury, as sole judge of
the credibility of a witness, would have accepted [Fowler’s]
line of reasoning had counsel been permitted to fully present
it.” Davis, 415 U.S. at 317. But where, as here, the proffered
cross-examination might reasonably have influenced the
jury’s assessment of Lara’s reliability or credibility, absent
sufficient countervailing interests, “the jurors were entitled to
have the benefit of the defense theory before them so that they
could make an informed judgment as to the weight to place
on [Lara’s] testimony which provided a crucial link in the
proof . . . .” Id.
[9] Turning now to those countervailing interests, the trial
court predicted that the cross-examination “would consume
8
Indeed, because it expressly invoked California Evidence Code § 352,
the trial court implicitly concluded that the proffered evidence was to
some degree relevant. There is no occasion to employ the weighing pro-
cess of California Evidence Code § 352 unless the proffered evidence,
later rejected, is relevant. If irrelevant, the evidence is excluded by Cali-
fornia Evidence Code § 350, which provides: “No evidence is admissible
except relevant evidence.”
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11947
an inordinate amount of time,” but, in fact, there is no reason
to believe that cross-examination as to the two prior incidents
necessarily would have. Had the cross-examination been per-
mitted, Fowler would have asked Lara about the prior inci-
dents. At oral argument, Fowler estimated that this testimony
would take no more than one hour. Only if Lara testified
inconsistently with either her interview or the police report
would Fowler have been forced to resort to extrinsic evidence
in the form of the MDIC interview, police report or other wit-
nesses.9 Even then, Fowler advised the trial court that he
would “be happy” “to abide with whatever restrictions the
Court wishes to impose as far as keeping [the cross-
examination] brief, relatively nonintrusive, yet getting the
probative facts before the jury.” Rather than setting forth rea-
sonable restrictions and holding Fowler to his word, the trial
court simply excluded any cross-examination at all on the
subject.
[10] The trial court also predicted that the cross-
examination “would be extremely confusing to this jury.” Our
criminal and civil justice systems routinely charge juries with
deliberating in cases involving exceedingly complex factual
and legal issues, often involving multiple parties and multiple
events. The defendant’s theory here, by comparison, is rather
straightforward. Indeed, with respect to the potential confu-
sion it might cause the jury, the introduction of evidence
regarding the Filson and Hendrix incidents is rather like the
routine introduction of evidence of so-called prior bad acts
against defendants charged with certain sex offenses. See,
e.g., Fed. R. Evid. 414 (permitting introduction of such evi-
dence where the defendant is charged with child molestation);
Cal. Evid. Code § 1108 (permitting introduction of such evi-
dence where the defendant is charged with, among other
crimes, sexual battery in violation of California Penal Code
9
Fowler represented to the trial court that he had under subpoena Hen-
drix, the detective that investigated the Hendrix incident, and the custodian
of records from the Bakersfield Police Department.
11948 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
§ 243.4 and/or annoying or molesting a minor in violation of
California Penal Code § 647.6). In such circumstances, juries
are tasked with evaluating allegations regarding prior, unre-
lated incidents and, if they find those allegations to be true,
determining their relevance as to the charged crime. If juries
are deemed competent to consider such evidence, we see no
reason why the jury here would not have been competent to
understand the proffered cross-examination.
Finally, the trial court was concerned about the prejudice,
presumably to Lara, resulting from the cross-examination.
Other than as to her credibility, it is not clear how her testi-
mony regarding the prior incidents would prejudice her at all.
Although the prior incidents involved sexual conduct or, at
least, alleged sexual conduct, Lara did not participate by
choice. Any disgust or hostility that jurors might have felt
would have been lodged not with Lara, but with Filson and
Hendrix. See LaJoie, 217 F.3d at 673 (holding that evidence
excluded pursuant to a state rape shield law pertaining to the
alleged victim’s history of being subject to non-consensual
sexual abuse was not prejudicial because it was “unlikely” to
cause “the jury . . . to draw an unfavorable and unwarranted
impression of the alleged victim”). Indeed, if anything, the
jurors would have been more likely to sympathize with Lara.
Further, if by “prejudice” the trial court meant embarrass-
ment to Lara, it is not clear how the testimony would be any
more embarrassing than Lara’s testimony regarding the
alleged incident involving Fowler. Such minimal — if any —
embarrassment cannot serve as the basis to preclude relevant
cross-examination. See Davis, 415 U.S. at 319-20 (“Whatever
temporary embarrassment might result to [the prosecution
witness] or his family by disclosure of his juvenile record . . .
is outweighed by [the defendant’s] right to probe into the
influence of possible bias in the testimony of a crucial identi-
fication witness. . . . [T]he State’s desire that [the prosecution
witness] fulfill his public duty to testify free from embarrass-
ment and with his reputation unblemished must fall before the
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11949
right of [the defendant] to seek out the truth in the process of
defending himself.”). Finally, Fowler’s attorney advised the
trial court that he would “gently walk” Lara through these
incidents, that he would not “try [to] embarrass [Lara] in front
of the jury because that will simply alienate [his] client,” and,
indeed, that he was confident that he could get “the facts to
come out . . . without undue pressure or embarrassment to
her.”
[11] We therefore conclude that the trial court’s preclusion
of the cross-examination was an objectively unreasonable
application of clearly established federal law as determined by
the Supreme Court. There can be no doubt that the precluded
cross-examination sufficiently bore on Lara’s reliability or
credibility such that a jury might reasonably have questioned
it. Nor were the trial court’s concerns about waste of time,
confusion and prejudice sufficiently well-founded to justify
precluding rather than limiting the cross-examination. Given
this, the trial court’s implicit determination that precluding the
cross-examination was not unreasonable, arbitrary or dispro-
portionate given its concerns was itself objectively unreason-
able.
4.
Having determined that Fowler was denied his Sixth
Amendment right to cross-examination, we must now decide
whether that error was harmless “assuming that the damaging
potential of the [precluded] cross-examination [would other-
wise have been] fully realized.” Van Arsdall, 475 U.S. at 684.
In a federal habeas proceeding, constitutional error is harm-
less unless it had “ ‘substantial and injurious effect or influ-
ence in determining the jury’s verdict.’ ” DePetris v.
Kuykendall, 239 F.3d 1057, 1061 (9th Cir. 2001) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Relevant
factors to consider include:
[1] the importance of the witness’ testimony in the
prosecution’s case, [2] whether the testimony was
11950 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
cumulative, [3] the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, [4] the extent of cross-
examination otherwise permitted, and, of course, [5]
the overall strength of the prosecution’s case.
See Van Arsdall, 475 U.S. at 684 (listing factors relevant on
direct review to whether a violation of a defendant’s Sixth
Amendment right to cross-examination is harmless beyond a
reasonable doubt). We apply each factor in turn.
First, the importance of Lara’s testimony to the State’s case
cannot be overstated. Conduct qualifies as annoying or
molesting for purposes of California Penal Code § 647.6 only
if the conduct “would unhesitatingly disturb or irritate a nor-
mal person if directed at that person” and was “motivated by
an unnatural or abnormal sexual interest in . . . the alleged
child victim[ ].” CALJIC 16.440; accord People v. Lopez,
965 P.2d 713, 717 (1998). Given that the sexually explicit
conversation in which Fowler engaged Lara while driving her
to her friend’s house was arguably benign and well-
intentioned, it was Fowler’s application of lotion to Lara that
was most likely to constitute annoying or molesting conduct
in the eyes of the jury. And it was Lara’s version of the event
that describes conduct that “would unhesitatingly disturb or
irritate a normal person if directed at that person” and that
suggests that the conduct was “motivated by an unnatural or
abnormal sexual interest in” Lara. See CALJIC 16.440;
accord Lopez, 965 P.2d at 717.
[12] Thus, in the absence of any physical evidence of or
any third-party witness to the alleged molestation, Lara’s tes-
timony was central to the State’s case. Indeed, it was the
State’s case and, so, the State’s case depended upon the jury
believing Lara’s testimony. About this there is no serious dis-
pute, the State conceding: “The instant case was primarily a
credibility contest between Lara and [Fowler].” This alone
strongly supports a finding that the error was not harmless.
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11951
Olden, 488 U.S. at 232 33 (concluding that the preclusion of
cross-examination was not harmless error where the witness
that was to have been cross-examined gave testimony that
was “central, indeed crucial, to the prosecution’s case”);
Davis, 415 U.S. at 319-20 (holding that the trial court pre-
cluded cross-examination in violation of the defendant’s Sixth
Amendment right to cross-examination where the prosecution
witness was “a crucial identification witness” and “[s]erious
damage to the strength of the State’s case would have been a
real possibility had [the defendant] been allowed to pursue
this line of inquiry”); see Wood, 957 F.2d at 1550 (“A trial
court does not abuse its discretion [by limiting cross-
examination in violation of the Sixth Amendment] so long as
the jury has ‘sufficient information’ upon which to assess the
credibility of witnesses.”); cf. Thomas v. Hubbard, 273 F.3d
1164, 1178 (9th Cir. 2002) (“This court has recognized that
‘where a defendant’s guilt hinges largely on the testimony of
a prosecution’s witness, the erroneous exclusion of evidence
critical to assessing the credibility of that witness violates the
Constitution.’ ”) (quoting DePetris, 239 F.3d at 1062), over-
ruled on other grounds by Payton v. Woodford, 299 F.3d 815,
829 n.11 (9th Cir. 2002) (en banc); DePetris, 239 F.3d at
1062 (same).
Second, as noted above, Lara’s testimony was not cumula-
tive such that an effective cross-examination would not have
undermined the State’s case. To the contrary, there was no
physical evidence and no third-party witnesses to the alleged
incidents. Other than Fowler, Lara was the only person that
could and did testify regarding the alleged incidents.
[13] Third, given this absence of evidence either corrobo-
rating Fowler’s account or contradicting Lara’s account, the
proffered cross-examination took on added significance.
Absent the proffered cross-examination, the jury was left
without a possible explanation for why Lara’s account dif-
fered so. The proffered cross-examination, however, would
have provided a jury with a theory: that since, and perhaps
11952 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
owing to, the Hendrix incident, Lara is “a little cautious about
things” and may misinterpret asexual conduct as inappropriate
conduct and may unconsciously exaggerate asexual conduct
such that it becomes inappropriate conduct. Cf. Crane v. Ken-
tucky, 476 U.S. 683, 689-90 (1986) (explaining the impor-
tance of providing the jury with an explanation for why two
accounts differ).
Fourth, the trial court admitted into evidence that Lara had
committed theft by shoplifting and, thus, even after preclud-
ing the proffered cross-examination, had not eliminated all
evidence affecting Lara’s reliability or credibility. Nonethe-
less, whereas the fact that Lara had committed theft by shop-
lifting undoubtedly bore on Lara’s character for truthfulness
generally, the proffered cross-examination bore on Lara’s reli-
ability and credibility in the specific context before the jury.
Thus, the former is qualitatively different from — and does
not substitute for — the latter. See Davis, 415 U.S. at 316
(distinguishing between “discrediting the witness [by] intro-
duc[ing] evidence of a prior criminal conviction of that wit-
ness,” by which “the cross-examiner intends to afford the jury
a basis to infer that the witness’ character is such that he
would be less likely than the average trustworthy citizen to be
truthful in his testimony,” and “[a] more particular attack on
the witness’ credibility [that] is effected by means of cross-
examination directed toward revealing possible biases, preju-
dices, or ulterior motives of the witness as they may relate
directly to issues or personalities in the case at hand”).
Fifth, as explained above, the State’s case was only as
strong as Lara’s testimony. Further, what we know of the jury
deliberations suggests that even absent the proffered cross-
examination, the jury did not consider the State’s case to be
strong. The jury heard evidence for only two days, but delib-
erated for four. And during those four days, it requested that
certain testimony be read back, then announced that it was
deadlocked as to both counts, and, only after being ordered to
deliberate further, rendered a verdict as to the count for
FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11953
annoying or molesting a minor. Even then, the jury remained
deadlocked as to the count for sexual battery, as to which a
mistrial ultimately was declared.
[14] Having applied the factors listed in Van Arsdall, we
have little trouble concluding that the error here had “ ‘sub-
stantial and injurious effect or influence in determining the
jury’s verdict.’ ” See DePetris, 239 F.3d at 1061 (quoting
Brecht, 507 U.S. at 638).)
IV.
The Sixth Amendment’s Confrontation Clause “ ‘comes to
us on faded parchment,’ . . . with a lineage that traces back
to the beginnings of Western legal culture,” Coy v. Iowa, 487
U.S. 1012, 1015 (1988) (quoting California v. Green, 399
U.S. 149, 174 (1970) (Harlan, J., concurring)), and confers a
“bedrock procedural guarantee.” Crawford v. Washington,
541 U.S. 36, 42 (2004). So too, “[t]he right of cross-
examination [in particular] is more than a desirable rule of
trial procedure.” Chambers v. Mississippi, 410 U.S. 284, 295
(1973). Rather, it is “essential to a fair trial,” Pointer v. Texas,
380 U.S. 400, 404 (1965), insofar as “[t]he opportunity for
cross-examination, protected by the Confrontation Clause, is
critical for ensuring the integrity of the fact-finding process.”
Kentucky v. Stincer, 482 U.S. 730, 736 (1987); accord Cham-
bers, 410 U.S. at 295 (noting that cross-examination “helps
assure the ‘accuracy of the truth-determining process’ ”)
(quoting Dutton v. Evans, 400 U.S. 74, 89 (1970)). This is
because “[c]ross-examination is the principal means by which
the believability of a witness and the truth of his testimony are
tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). Indeed, it
has been said that cross-examination is nothing less than the
“ ‘greatest legal engine ever invented for the discovery of
truth.’ ” Green, 399 U.S. at 158 (quoting 5 J. Wigmore, Evi-
dence § 1367 (3d ed. 1940)); accord Pointer, 380 U.S. at 404
(noting “the value of cross-examination in exposing falsehood
and bringing out the truth in the trial of a criminal case”).
11954 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
[15] For the reasons expressed above, we hold that Fowler
was denied this venerable and essential right and, further, that
the district court erred in holding that the trial court’s order
precluding cross-examination pertaining to the two prior
claims by Lara of molestation was not an unreasonable appli-
cation of clearly established federal law as determined by the
Supreme Court. We therefore reverse and remand with
instructions that the district court issue a conditional writ of
habeas corpus directing that the State vacate Fowler’s convic-
tion unless, within 90 days or as extended by the district court
as reasonably necessary, the State begins anew trial proceed-
ings against Fowler. See Lane v. Williams, 455 U.S. 624, 630-
31 & n.10 (1982) (noting as appropriate habeas relief “set[-
ting] aside [the habeas petitioners’] convictions,” which “re-
lief would free [the habeas petitioners] from all consequences
flowing from their convictions, as well as subject them to
[potential] reconviction with a possibly greater sentence”).10
REVERSED and REMANDED.
10
Because we reverse and remand for issuance of a conditional writ of
habeas corpus, we need not reach Fowler’s remaining claims.